New technology disrupting old workplace laws

The United States’ regulation of the workplace has long been an outlier among much of the world. Especially for private, nonunionized workers, the U.S. largely allows companies and workers to figure out the terms and conditions of work on their own.

Consider Uber drivers

Like other companies in what has been called the “gig economy,” Uber has spent considerable amounts of money and time litigating and lobbying to protect regulations classifying its drivers as independent contractors, rather than employees. Uber set its fifth annual federal lobbying record in 2018, spending US$2.3 million on issues including keeping its drivers from being classified as employees.

The distinction is a crucial one. Uber does not have to pay employment taxes – or unemployment insurance premiums – on independent contractors. In addition, nonemployees are completely excluded from any workplace protection laws. These workers are not entitled to a minimum wage or overtime; they can be discriminated against based on their race, sex, religion, color, national origin, age, disability and military status; they lack the right to unionize; and they are not entitled to a safe working environment.

Companies have tried to classify workers as independent contractors ever since there have been workplace laws, but technology has greatly expanded companies’ ability to hire labor that blurs the lines between employees and independent contractors.

Employees aren’t protected, either

Even for workers who are considered employees, technology allows employers to take advantage of the gaps in workplace laws like never before. Many workers already use computers, smartphones and other equipment that allows employers to monitor their activity and location, even when off duty.

No privacy protections for workers

The monitoring that’s possible now will seem simplistic compared to what’s coming: a future in which robotics and other technologies capture huge amounts of personal information to feed artificial intelligence software that learns which metrics are associated with things such as workers’ moods and energy levels, or even diseases like depression.

Except for some narrow exceptions – like in bathrooms and other specific areas where workers can expect to be in relative privacy – private-sector employees have virtually no way, nor any legal right, to opt out of this sort of monitoring. They may not even be informed that it is occurring. Public-sector employees have more protection, thanks to the Fourth Amendment’s prohibition against unreasonable searches, but in government workplaces the scope of that prohibition is quite narrow.

For instance, Amazon recently abandoned a multi-year project to develop an AI hiring program because it kept discriminating against women. Apparently, the AI program learned from Amazon’s male-dominated workforce that being a man was associated with being a good worker. To its credit, Amazon never used the program for actual hiring decisions, but what about employers who lack the resources, knowledge or desire to identify biased AI?

The laws about discrimination based on computer algorithms are unclear, just as other technologies stretch employment laws and regulations well beyond their clear applications. Without an update to the rules, more workers will continue to fall outside traditional worker protections – and may even be unaware how vulnerable they really are.